Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Arbitration; Bienenstock & Assocs. v. Lowry, Inc.; Principle that a party cannot be forced into arbitration absent an agreement for it; Ehresman v. Bultynck & Co., PC; Determining whether parties agreed to arbitrate a matter; Lebenbom v. UBS Fin. Servs., Inc.; Operating Agreement (OA) providing for statutory arbitration; The Michigan Uniform Arbitration Act (MCL 691.1681 et seq.); MCL 691.1686(2) & (3); Watts v. Polaczyk; Burden to show the existence of an agreement to arbitrate; McKinstry v. Valley Obstetrics-Gynecology Clinic, PC; Necessity of the circuit court having jurisdiction over the controversy & the parties; MCL 691.1706; Lease Acceptance Corp. v. Adams; Subject-matter jurisdiction; Winkler v. Marist Fathers of Detroit, Inc.; Wayne Cnty. v. AFSCME Local 3317; Circuit courts’ original jurisdiction; MCL 600.605; Const. 1963, art. 6, § 13; In personam jurisdiction; Oberlies v. Searchmont Resort, Inc.; Service of process; Isack v. Isack; Holliday v. Townley; MCR 2.105; Waiver of the ability to object to service of process under MCR 2.116(C)(3); MCR 2.116(D)(1); Al-Shimmari v. Detroit Med. Ctr.; Limited liability company (LLC)
The court held that the circuit court erred in dismissing plaintiffs-LLC member investors’ unfair and oppressive conduct claim against defendant-Hermann in one of these consolidated appeals (the 2017 Case) under MCR 2.116(C)(3) because he had waived any objection to service. But it properly dismissed the 2017 Case against other defendants who timely raised the defective service issue and did not submit to the circuit court’s jurisdiction. As to the dismissal of the breach of contract and tortious interference with contract relations claims against Hermann in the 2017 Case, the circuit court erred in considering the merits of his defenses – it should have ordered him to proceed to arbitration. Finally, further record development was required as to whether certain respondents were a party to the OA “obligated to submit to binding arbitration.” Thus, the court reversed in part, affirmed in part, and remanded. Hermann did not raise the defective service issue “in his first motion or his first responsive pleading. After he filed his summary disposition motion and” his answer to the complaint, he joined the motion of other defendants. But by that point in the litigation he “had waived any objection to service and could not obtain relief on that ground.” However, as to other defendants, the record showed that “plaintiffs failed to comply with the requirements of MCR 2.105 by not sending to each defendant via certified or registered mail a summons and a complete copy of their filed complaint before the summonses expired. Instead, plaintiffs sent a summons with a copy of the caption page of the complaint by FedEx. Failure to serve a summons and a complete copy of the filed complaint under the method prescribed by MCR 2.105 deprived the circuit court of personal jurisdiction over” these defendants. Thus, it could not order them to arbitration and it properly dismissed the 2017 Case against them. But the circuit court should have stayed the proceedings as to “plaintiffs’ breach of contract and tortious interference with contract relations claims against Hermann in the 2017 Case” and refrained from adjudicating these claims. His defenses did “not fit within the gateway issue for” its decision.
Failure to file or record the amended condominium bylaw prohibiting short-term rentals; The Condominium Act (MCL 559.101 et seq.); MCL 559.153; Condominium documents defined; MCL 559.103(10); MCL 559.206(a); Declaratory & injunctive relief; MCL 559.190(2); MCL 559.212(1); Lease defined; People v. Flick; Miles v. Shreve; Lessor & lessee defined; Counterclaim & third-party claim of breach of contract; Miller-Davis Co. v. Ahrens Constr., Inc.; MCL 559.168; MCL 559.173; MCR 2.116(G)(3)(b) & (4); Negligence & breach of fiduciary duty; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Miller v. Magline, Inc.; Delphi Auto PLC v. Absmeier; Successor developer defined; MCL 559.235(1); Developer defined; MCL 559.106(2); Attorney fees & costs; Fleet Business Credit v. Krapohl Ford Lincoln Mercury Co.; Dessart v. Burak; MCL 559.206(b); Distinguishing Pransky v. Falcon Group, Inc.; MCL 559.206(b); Adams v. Adams (On Reconsideration); Highfield Beach at Lake Michigan (HBLM)
The court held that the amended bylaw was enforceable as to the property urged by appellee-HBLM for declaratory and injunctive relief and that appellant-Sanderson’s counterclaim and third-party complaint for money damages related to lost rental income failed as a matter of law. It also held that HBLM was entitled to an award of attorney fees and costs. The case concerned the enforceability of an amended condominium bylaw prohibiting short-term rentals where the rentals were expressly contemplated and permitted under an existing 15-year contract between a property management company (CRA) and the owner of a condominium unit (Sanderson). The bylaw permitted short-term rentals of 14 days or more. The amended bylaw required a minimum rental term of four months, which would effectively preclude CRA from leasing the unit to typical vacationers. Sanderson claimed “that HBLM and the Board Members had a contractual and statutory obligation to maintain on file and to record the amendment, that they failed to do so,” and that had they complied, he would have had notice. The crux of Sanderson’s argument was “that pursuant to MCL 559.212(1), he and CRA, as lessor and lessee respectively, had ‘rights’ under the written lease, i.e., the CRA contract, that included participating in future rentals or leases of the condominium unit for terms as short as 14 days, which rights could not be affected or imperiled by the subsequent amendment of the pertinent bylaw.” The court held that there “was an expectation by Sanderson that the 15-year CRA contract, which obligated CRA to pay Sanderson at least $96,000 per year, would allow CRA to lease the condominium unit to persons for minimum rental periods of 14 days.” It also held “that the CRA contract constituted a property management agreement, not a lease agreement; therefore, the exception to the general enforceability of bylaw amendments found in MCL 559.212(1) was not implicated” here. The court further held that “even assuming that there were a lease component to the CRA contract, with Sanderson as the lessor and CRA as the lessee, we believe it would only encompass, at most, part of the contract. In sum, the trial court did not err in granting summary disposition in favor of HBLM on its complaint for declaratory and injunctive relief.” Affirmed.
Sentencing; Principle that the failure to persuade a jury beyond a reasonable doubt is not conclusive as to proofs under the less stringent preponderance of the evidence standard; Stone v. United States; Martucci v. Detroit Comm’r of Police; Principle that sentencing courts may not consider any “acquitted conduct” in crafting their sentences, although they remain free to consider “uncharged conduct"; People v. Beck; “Acquitted conduct”; United States v. Watts; Scoring of the sentencing guidelines; People v. Lockridge; People v. Steanhouse; Scoring of OV 9 (number of victims); MCL 777.39(1)(b); MCL 777.39(2)(a); Principle that only people placed in danger of injury or loss of life when the sentencing offense was committed should be considered; People v. Sargent; Principle that felon in possession (FIP) does not place anyone in danger of physical injury or death; People v. Biddles; Aiding & abetting; People v. Moore; People v. Robinson; Assault with intent to commit murder (AWIM)
Holding on remand that the trial court was justified in finding that defendant’s actions placed at least 10 victims in danger of physical injury or death, the court reaffirmed its finding that the trial court did not err in assigning 25 points under OV 9. He was convicted of FIP and felony-firearm, but acquitted of AWIM on an aiding and abetting theory. His charges and convictions arose out of a shooting at a night club. The trial court sentenced him as a second-offense habitual offender to 48 to 90 months, an upward departure from his minimum sentencing guidelines range of 14 to 36 months, consecutive to a mandatory 2 years for felony-firearm. In a prior appeal, the court affirmed. But the Supreme Court vacated in part as to his departure sentence and remanded for reconsideration in light of Beck. In the present appeal, the court again affirmed. It agreed with the trial court that "a substantial and qualitative difference exists between possessing contraband in one’s own home, and unlawfully possessing and passing around a concealed firearm in a crowded bar during a shooting." It noted that "[n]othing in Beck precludes a sentencing court from generally considering the time, place, and manner in which an offense is committed." As such, the court concluded that "Beck does not exclude from consideration the contextual fact that the acquitted conduct was committed by someone, so long as that conduct is not actually attributed to the defendant. Irrespective of whether defendant participated in the shooting, the context within which he committed the offense of [FIP] intrinsically placed people in grave danger." It concluded that "even though defendant may not be considered to have engaged in any conduct that aided and abetted the shooting, the trial court nevertheless reasonably concluded that the manner in which defendant committed the offense of [FIP], particularly in light of [his] apparent intelligence and own history, warranted a significant departure from the guidelines range."
Ineffective assistance of counsel; People v. Hoag; Strickland v. Washington; People v. Armstrong; People v. Vaughn; Failure to cross-examine an accomplice as to the 20-year potential sentence she avoided in exchange for testifying; Trial strategy; People v. Rockey; Principle that a jury should not be informed of the potential punishment a defendant faces if convicted; In re Spears; Right to cross-examine a testifying accomplice about the specific sentence avoided by testifying; People v. Mumford; People v. Allan
Holding that the trial court was not required to admit evidence as to a prosecution witness’s (B) 20-year potential sentence she avoided in exchange for testifying, and defendant could not show that the failure to present this evidence would likely have produced a different outcome, the court rejected his ineffective assistance of counsel claim and affirmed. He was convicted of aiding and abetting possession with intent to deliver less than 50 grams of cocaine, as a subsequent offense. He contended that his trial counsel was ineffective by failing to cross-examine B as to the 20-year potential sentence she avoided in exchange for testifying. Defendant argued that as a result of this oversight, the trial court did not give a jury instruction based on M Crim JI 5.13(1). It gave a jury instruction based on M Crim JI 5.6. The court held that “while it would have been permissible and appropriate” for counsel to seek to present evidence of the 20-year sentence that B “avoided by testifying, the trial court was not required to admit this evidence if it was requested.” Based on the trial court’s factual findings at the Ginther hearing, defendant failed to meet his burden to show there would have been a different outcome. Although the jury was not specifically instructed that B “avoided a 20-year penalty, it was instructed to consider that she testified in exchange for dismissal of a charge of possession of cocaine with intent to deliver and was allowed to plead to possession of cocaine with a deferred sentence.” Counsel elicited that B “admitted to accepting responsibility for the drugs. Although she claimed to do so out of fear of defendant, she did not alter her story when the police removed her from defendant’s presence. Rather, after being jailed for a period of time, [B] initiated police contact and changed her story.” Defendant could not show that the failure to present the maximum penalty B faced would likely have produced a different outcome.
Other acts evidence; MRE 404(b)(1); People v. Martzke; People v. Knox; People v. Starr; Relevance; People v. Orr; Evidence defendant possessed a weapon of the type used in the charged crime; People v. Hall; MRE 401; Unfair prejudice; MRE 403; People v. Mills; Presumption jurors follow their instructions; People v. Breidenbach; Amendment of the information; People v. Unger; MCL 767.76; MCR 6.112(H); Unacceptable prejudice; People v. Hunt; People v. Goecke; Motion to quash; People v. Wilson; Ineffective assistance of counsel; People v. Nix; Failure to present an expert & evidence of defendant’s foot injury; Failure to investigate the victim’s status as a police informant; Matters of trial strategy; People v. Payne; People v. Benton; People v. Trakhtenberg; A substantial defense; People v. Chapo; Sentencing; Scoring of OV 6; MCL 777.36(1)(a) & (b); MCL 777.36(2)(a); People v. Werner; Whether resentencing was required; People v. Francisco; Court costs; Unconstitutional tax claim; People v. Cameron; Carrying a concealed weapon (CCW)
The court held that the trial court did not abuse its discretion in admitting other acts evidence or err in permitting the prosecution to amend the information. It also rejected defendant’s ineffective assistance of counsel claims, and his argument that the imposition of court costs constituted an unconstitutional tax. But it held that he was entitled to resentencing due to an error in scoring OV 6. Thus, it affirmed his convictions and the court costs imposed, vacated his sentences, and remanded for resentencing. He was convicted of second-degree murder, CCW, and felony-firearm. He was sentenced to concurrent prison terms of 35 to 70 years for murder and 2 to 5 years for CCW, and a consecutive 2-year term for felony-firearm. The other acts evidence “that defendant fired a nine-millimeter handgun approximately one month before the charged shooting, and that the nine-millimeter cartridge casing from that shooting and the recovered casings from this crime scene were found to have been fired from the same gun was probative of defendant’s identity as the shooter.” This was a proper purpose under MRE 404(b)(1). As to MRE 403, the shooter’s identity was the primary issue at trial. Thus, “evidence connecting defendant to the murder weapon was highly relevant. The trial court also instructed the jury on the permissible use of the evidence, thereby alleviating any potential for unfair prejudice. It is well established that jurors are presumed to have followed their instructions.” The court concluded that the probative value of the evidence here “was not substantially outweighed by the danger of unfair prejudice . . . .” It further concluded that the trial court did not abuse its discretion in allowing evidence of a prior altercation between defendant and the victim, which culminated in the victim shooting defendant’s brother. This had high probative value because it supplied a motive. However, as the prosecution conceded, OV 6 was erroneously scored at 50 rather than 25 points. Correcting the score changed defendant’s guidelines range, entitling him to resentencing.
Termination under § 19b(3)(j); In re VanDalen; In re Moss Minors; In re White; In re BZ; Wilson v. Taylor; McIntosh v. McIntosh; In re Gonzales/Martinez; Child’s best interests; In re Olive/Metts Minors
Holding that § (j) existed and that termination was in the child’s (B) best interests, the court affirmed termination of respondent-mother’s parental rights. The trial court did not clearly err by concluding, by clear and convincing evidence, that there was a reasonable likelihood that B would be harmed if returned to the mother’s care. It found that she posed a great risk to B through her failure to abide by the safety plan. The plan provided that her adult son was not allowed to babysit B or have contact with B without other adults present. However, she “would disregard the safety plan by attempting to leave [B] alone with her son and by permitting them to sleep in the same bed.” Thus, the trial court properly found that her “continued disregard of the safety plan presented a reasonable likelihood [B] would be harmed if returned.”
Termination under § 19b(3)(g); Principle that only one statutory ground is required; In re Foster; Child’s best interests; MCL 712A.19b(5); In re Moss Minors; In re Olive/Metts Minors; In re White
Holding that clear and convincing evidence supported termination under § (g) and that it was in the child’s best interests, the court affirmed the order terminating respondent-mother’s parental rights. The trial court determined that she did not provide the child with proper care or custody. It noted that she failed to protect the child “from being sexually molested in her home by respondent’s boyfriend, whom the child ‘considered her father,’ and that respondent admitted” she failed to protect the child. In addition, the child displayed “sexualized behaviors that pointed to abuse, as the trauma assessment noted that a four-year-old child would not know about such acts unless they had experienced that kind of behavior themselves. The trial court also found that the sexual abuse had caused extreme and long-lasting trauma for the child.” It determined that she showed “a lack of trust of respondent throughout the visits, including by refusing to eat in front of respondent, even when bribed with candy.” The trial court indicated that in 41 years of handling termination cases, “it could not think of any more extreme behaviors than” the child’s in attempting “to avoid visitation, which included biting herself until she bled, throwing herself down stairs, and pretending to be sick.” It acknowledged that respondent had worked through services, but the child “continued to not want to follow through with respondent’s requests” due to her distrust of respondent. It was satisfied that reasonable reunification efforts were made, but that the damage to the child was so bad, and she “was already so ‘broken,’ that her relationship with respondent was unable to be repaired. Finally, respondent testified that services were adequate.” The court held that the trial court did not clearly err in concluding that “respondent failed to provide proper care or custody for the child, and that there was no reasonable expectation that” she would be able to do so within a reasonable time considering the child’s age. It also found no error in the trial court’s ruling as to the child’s best interests. She was improving in her foster parents’ care. They “helped her to learn how to trust and feel safe,” and provided permanence and stability.